Zarfati v McMillan [2023] NSWSC 839

Zarfati v McMillan [2023] NSWSC 839

The defendants' costs claims for the two motions included work and expenses that were disproportionate or amounted to litigation luxuries, including extensive preparation, subpoena work and retention of very eminent senior counsel, but the plaintiff's conduct had reasonably caused the defendants to incur considerably greater costs than would ordinarily be expected. Applying a broad-brush, fair and proportionate assessment, the Court fixed the gross costs sum at $205,000 including GST. For security for costs, substantial prior preparation and subpoena work had already been compensated through the Costs Order, the need for further subpoenas and witness evidence was uncertain and likely less...

Jurisdiction
Australia
Judgment Date
18 July 2023
Procedural Posture
Common Law / Determination on the Papers of the Quantum of a Gross Sum Costs Order and a Security for Costs Order Made on 21 April 2023
Outcome
The Court determined the quantum of the Costs Order and Security for Costs Order on the papers and fixed the plaintiff's payment obligations in reduced amounts.
Legal Topics
['gross Sum Costs Order' 'security for Costs' 'costs Assessment' 'proportionality of Legal Costs']
['practice and Procedure' 'costs'] ['gross Sum Costs Order' 'security for Costs' 'costs Assessment' 'proportionality of Legal Costs']

Case Brief

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Procedural Posture

Common Law / Determination on the Papers of the Quantum of a Gross Sum Costs Order and a Security for Costs Order Made on 21 April 2023

Legal Issues

  1. 1 ["What gross sum should be fixed for the defendants' costs of and incidental to the plaintiff's notice of motion filed on 25 January 2023 and the defendants' notice of motion filed on 27 January 2023." "What amount of security should the plaintiff provide for the defendants' costs of the Separate Question." "Whether the costs and security claimed by the defendants were reasonable, proportionate and fairly recoverable in light of the work done, the plaintiff's conduct, and the prior preparation already undertaken."]

Ratio Decidendi

The defendants' costs claims for the two motions included work and expenses that were disproportionate or amounted to litigation luxuries, including extensive preparation, subpoena work and retention of very eminent senior counsel, but the plaintiff's conduct had reasonably caused the defendants to incur considerably greater costs than would ordinarily be expected. Applying a broad-brush, fair and proportionate assessment, the Court fixed the gross costs sum at $205,000 including GST. For security for costs, substantial prior preparation and subpoena work had already been compensated through the Costs Order, the need for further subpoenas and witness evidence was uncertain and likely less...

Court Disposition

The Court determined the quantum of the Costs Order and Security for Costs Order on the papers and fixed the plaintiff's payment obligations in reduced amounts.

Orders

  • ["Pursuant to the Costs Order made on 21 April 2023, the plaintiff is to pay the defendants' costs of and incidental to the two notices of motion in the sum of $205,000.00 (inclusive of GST assuming, without deciding, that GST is payable in respect of all relevant services)." 'The amount to be provided under the...